Hossaini v EDS Recruitment Ltd (trading as J & C Recruitment)

It is a misconception that fresh evidence will be rejected simply because it could have been sought earlier; instead, the applicant must satisfy the Ladd v Marshall three-stage test: evidence must be apparently credible, relevant and likely to have had important influence, and unobtainable with reasonable diligence for use at the original hearing. The EAT may admit fresh evidence where it raises a question of fairness or procedural impropriety that engages its statutory jurisdiction, and may remit for re-hearing where unfairness is shown. Correspondence marked merely "without prejudice" is inadmissible on costs unless expressly made "without prejudice save as to costs".

The claimant brought ET claims of race and religion/belief discrimination, harassment and victimisation. The ET rejected the claims and ordered the claimant to contribute to respondents' costs. After the hearing the claimant obtained a translation email from the translators used by the respondent which contained an additional, racially-offensive translation omitted from the document relied on at the ET. The claimant sought reconsideration and then appealed both the substantive ET decision and the refusal of reconsideration. The EAT was asked to determine whether the newly obtained material constituted admissible fresh evidence and whether the ET erred in its costs reasoning.

1. The appeals are allowed. The fresh evidence meets the three-stage test in Ladd v Marshall and may be admitted on appeal. The three stages are applied and satisfied: (a) the material is apparently credible; (b) it is relevant and would probably have had an important influence on the ET's findings, both on meaning of the phrase in issue and on general credibility; (c) it could not, with reasonable diligence, have been obtained for use at the ET hearing because a party is not required to investigate the veracity of every document produced by an opponent and the material obtained was evidence that a disclosed document had been doctored (see the section "Fresh Evidence - The Law").
2. The EAT has jurisdiction to admit fresh evidence where it raises a question of fairness or procedural impropriety affecting a point of law and fairness of the hearing. Where non-disclosure or document alteration gives rise to unfairness, the appropriate remedy may be a re-hearing before a differently constituted ET (following the approach in Aslam v Barclays Capital Services Limited).
3. The ET erred in refusing reconsideration under Rule 72(1) of the ET Rules without engaging with the fresh evidence point or applying the Ladd v Marshall test. The ET gave no adequate reasons addressing that new evidence and did not seek the respondents' response.
4. Accordingly the correct disposal is to remit the claims for rehearing before a differently constituted Employment Tribunal. That ET will determine credibility and the overall effect of the newly admitted evidence.
5. On costs, the ET erred in two respects. First, it had regard to correspondence marked simply "without prejudice" when it was not marked "without prejudice save as to costs", contrary to the principle in Reed Executive plc v Reed Business Information Ltd. Second, the ET failed to demonstrate a proper exercise of discretion under Rule 76 ET Rules: it treated its finding of unreasonable conduct as decisive without separate consideration of whether to exercise its discretion to order costs (see the Rule 76 framework and authorities cited). The appeal against the costs order is therefore allowed.
6. Remittal: the matter is remitted to a differently constituted Employment Tribunal for re-hearing of the substantive claims and for any consequential reconsideration of costs.

• Employment Appeal Tribunal : Appeal allowed; fresh evidence admitted; matter remitted to a differently constituted Employment Tribunal for re-hearing (16 May 2019).
• Employment Tribunal (Norwich) : Original hearing (Employment Judge Postle with members) dismissed claims and made costs awards; reconsideration application refused by Employment Judge Postle (judgment sent 23 November 2018).